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Saturday, March 5, 2011

As much as it kills me to say this - I have to agree with the National Organization for Marriage on something. Shocking, yes I know. Maggie just released a blog post where she states...

Here's the weirdest position of all that pro-gay marriage advocates have settled on: it's okay for the legislature to vote on gay marriage, but "unconscionable" for the people to do so.

I have actually been thinking about this and was going to write on it eventually. Maggie makes a great point; are LGBT right activists being hypocritical when we applaud legislators voting on gay marriage, yet at the same time if a voter referendum occurs we cry that "our rights as a minority are never supposed to put up to a majority vote".

Are not people voting on our rights either way? When does a vote become a suppression of a minority by the majority? Is it any way different because a smaller group (which still must reach a majority vote) is doing the voting?

What branch of government is designed to protect against the tyranny of the majority? Any reader of political theory would recognize that it is not the body elected by the people (the Legislative branch). The Founding Fathers even realized this when they stated in the Federalist Papers that the most dangerous branch to the liberty of the American people was the Legislative. You see, the legislative branch is still controlled by the majority; they are elected by the people of their state. The fact that it is a smaller body does not eliminate the overall majorities control. It is for this reason that the Constitution gives us an independent judiciary, a body whose job is to ensure that a majority is never tyrannizing a minority.

Though I will continue to be happy when states and cities give gays and lesbians the same rights that their heterosexual counterparts enjoy, this revelation will ensure that I will not applaud too much. For if I applaud and am overjoyed at a legislative victory, I am giving my assent to the precedent that my rights can be voted on.

I would be interested to hear your thoughts...are we being hypocritical as the LGBT community to applaud one type of voting, but not the other?

There has been a lot of squawking from the gay blogosphere as the news of the House of Representatives pending jump into the Defense of Marriage Act fray. To many it seems as though the Republicans in the House – led by John Boehner and Eric Cantor – are bowing to the political pressure of their social conservative base. Though this may be the case (like any move, political ramifications are taken into account), I feel that it is best thing for the LGBT community with the route that the House is preparing to take. Why? Because in the end, it is through the Courts that our victories are to be won, and thus the irrationality of our opponents arguments must be made apparent.

HRC released a press release the other day, stating their disappointment with the DOMA defense, and stated,

The decision to mount an all-out defense of DOMA is particularly hypocritical given the Speaker’s contention that the President was distracted from focusing on the economy by DOMA,” said Solmonese. In order to defend the constitutionality of Section 3 of DOMA in court, Congress would likely have to make arguments that could include:

·That gays and lesbianshave notfaced a history of discrimination·That one’s sexual orientationis in fact relevantto a person’s ability to contribute to society· That, contrary to the opinion of experts, sexual orientation is something thatcan be changed· That, despite widespread laws such as marriage amendments disadvantaging gays and lesbians, they arepolitically powerful.· That the federal government is justified inviolating the federalist traditionof leaving marriage and family law to the states

“A far right fringe may be calling for a defense of DOMA, but doing so is sure to turn off independent voters,” said Solmonese. “John Boehner should realize that the world has changed since 1996 and fair-minded Americans won’t like what House Republican leaders have to say when trying to justify federal discrimination against some of a state’s lawful marriages.”

Of course you would expect HRC to react the way that they have…for that is their role as a lobby group. Yet when we see the rationale behind the Department of Justice’s refusal to defend DOMA in the 2nd Circuit Court of Appeals, we see that the House will also have a very difficult time defending the law. As the HRC rightfully pointed out, the House lawyers will have to make arguments that will be very difficult to make based upon current knowledge about LGBT people. It is for this reason that I am happy that the House is taking up this defense, for it will again become readily apparent in a Court of law that the justifications used for rational basis review rather than higher scrutiny are weak, ineffective, and based on pure animus.

Thursday, March 3, 2011

This is the second of four posts that I am doing on the Defense of Marriage Act. Last week I addressed the Full Faith and Credit clause of the Constitution and how it relates to DOMA. Today I will be dealing with the issue of Federalism, specifically rebutting the points made in a recent editorial by the Wall Street Journal. Authors David Rivkin Jr. and Lee Casey make the claim that DOMA is not a violation of the Constitutional principle of federalism (which is that both the states and federal government have certain jurisdictions, and they cannot go outside of them legitimatly).

Congress passed DOMA in 1996, when Hawaii appeared to become the first state to recognize same-sex marriages. Had Hawaii done so, it would have immediately raised two fundamental issues. First, would other states be required to recognize gay marriages performed in Hawaii under the Constitution's "Full Faith and Credit" clause? Second, if gay marriage was permitted in some states, would the federal government also be required to recognize same-sex unions—especially in light of the scores of federal laws that grant or withhold some benefit based upon marital status?

Congress answered these questions with a federalist solution. DOMA posits that the definition and regulation of marriage has always been a state issue; it is one of those fundamental "police power" prerogatives the Constitution reserves to the states alone. States have adopted widely differing rules governing who can marry who (first cousins, for example, can marry in Connecticut but not in West Virginia), at what age (most states permit the marriage of 16-year-olds but impose very particular requirements on the young couple), and under what conditions. DOMA preserves this diversity.

and...

DOMA recognizes and protects the unique constitutional role of the states in deciding these issues. It is through the democratic process within the states that a genuine and lasting resolution to the question of same-sex marriage can and should be found. Today, five states and the District of Columbia permit same-sex marriage. Another four states recognize gay marriages performed in other jurisdictions, and 41 states do not recognize such unions. DOMA protects both legal regimes.

It's true that on the federal level DOMA clearly establishes a preference for traditional marriage. But it does not purport to define marriage for any purpose other than federal programs, which can be expanded to same-sex couples on a program by program basis, as President Obama has already done in many areas.

Considering that these two men are practicing lawyers and are defending 26 states against the Healthcare mandate, I am surprised that they seem have little knowledge of what federalism actually is and how the founders set up our system. If a federal law defines something that it is not supposed to define - per the Constitution - would that not make said federal law unconstitutional? Is the federal government really letting the states decide the issue, when if the states do so, they run the risk of violating federal law?

In my opinion, DOMA clearly violates the principle of federalism contained within the Constitutions 10th Amendment. It reads,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Rivkin and Casey really only give us one justification for DOMA, and that is the application of marriage equality laws to those states that have anti-gay marriage bans; aka the application of the Full Faith and Credit clause. As I dealt with that objection last week and how flimsy it is, it makes me wonder why they believe the way that they do. Is social ideology once again conflicting with the conservatives love of the Constitution and thus they must find a defense for their position, not matter how ridiculous?

To be a truly Federalist solution, the states should decide who can and cannot be married - unless of course the Judiciary rules on the constitutionality of state marriage bans - and the federal government should accept the state's position. That is how the federal government deals with all other applications of marital law. If for example the state of Connecticut allows two people to be married, a marriage that may not be legal in Mississippi, the federal government still recognizes that marriage. DOMA does not allow the federal government to be a neutral player in the marriage debate and instead has allowed it to pick a side, something that it Constitutional should never have been able to do.

Wednesday, March 2, 2011

There is some good news coming out of Wyoming today!! A bill that would not allow the state to recognize any same-sex marriages performed outside of the state was defeated in the State Senate in a vote of 16-14. Though this bill had passed the Wyoming House of Representatives 31-28 earlier today, the Senate push a hold on the bill for the entirety of the current legislative season.

A bill that would have barred government officials from recognizing same-sex marriages performed outside the state died in the Wyoming Senate on Wednesday.House Bill 74, titled Validity of Marriages, failed 14-16 in the Senate, after members of the House approved it on a 31-28 vote earlier in the day.The legislative wrangling drew the attention of Jackson Hole residents, including two women who were married outside the state but reside here.“Sue Ann and I just couldn’t be happier,” said Jackson resident Jeri Batistolli, referring to her wife. “It’s terrific. The people of Wyoming have what they want — the ban on gay marriage — and we still have the U.S. Constitution.”Batistolli, who married Sue Ann Robertson earlier this year, said legislators’ decision to vote down the bill affirmed an ethos that is central to the state’s character.“It says that the people of Wyoming want to live and let live,” she said. “Whatever your view, they want to be fair.”The defeat also proved significant for local legislators.“I’m so proud of our legacy as the Equality State,” Rep. Ruth Ann Petroff said Wednesday afternoon.Petroff said she voted against the bill because its only purpose was to deny rights granted to couples in other states.